June 2021 Newsletter

• New USCIS Policy Announcements Expected to Benefit Applicants
• Unanimous Supreme Court Decision Creates Major Setback for TPS Recipients Seeking Permanent Residence
• USCIS ends Biometrics Requirement for Extension/Change of Status for H-4, L-2, E Visas
• Policy Updates: Eligibility for Naturalization
• Attorney General Garland Vacates Trump Era Decisions Restricting Asylum
• Department of State Priority Processing of Nonimmigrant and Immigrant Visas
• USCIS Will Grant Work Permits to Victims of Crime with Pending U Visa Applications
• Prosecutorial Discretion Memorandum Issued by DHS
• Update on Children Separated at the Border Due to Trump Zero-Tolerance Policy
• S. Citizens May Return to U.S. on Expired U.S. Passport
• News in Brief: Redesignation of Haiti for TPS; Land Travel between the U.S. and Canada and Mexico Remains Restricted; EB-5 Investment Reverts to $1 Million or $500,000 for Pooled Investors; DOS Updates Position on U.S. Citizenship Transmission and Assisted Reproductive Technology

New USCIS Policy Announcements Expected to Benefit Applicants

Effective June 9, USCIS announced new policies on expedited processing, Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and employment authorization documents. These policies seek to alleviate the negative impact of application process delays and offer applicants additional opportunities to request that their applications be expedited. In addition, the new policies demand more favorable discretion from USCIS officers when issuing RFEs and NOIDs to applicants.

Updated Expedited Processing

On a case-by-case basis, USCIS will consider expedite requests by nonprofit organizations when the request is in furtherance of the social or cultural interest of the United States. This provision allows nonprofits to request an expedite even when premium processing is available for that application. This accommodation reflects the agency’s better understanding of the burden associated with the high cost of premium processing ($2,500) for nonprofits.

Renewed RFE and NOID Policies

USCIS will use pre-2018 RFE and NOID principles when reviewing applications. This means that adjudicators will use more favorable discretion to review applications, including performing additional research (i.e., reviewing a corporate website to verify information about the petitioner’s corporation) and conducting telephone inquiries of the applicant to clarify any information at issue. If the application is missing critical information or does not meet the eligibility standards for the intended immigration benefit, USCIS will first issue a detailed RFE to allow the applicant a chance to correct mistakes and unintentional omissions.

Extended Work Authorization Period

The current one-year validity period on initial and renewed work authorization permits will increase to two years for certain adjustment of status applicants. This increase will exponentially reduce the hassle of applying for new permits and loss of employment based on expiring permits.

These policy changes are prime examples of the Biden administration’s efforts to help reset immigration policies from the past few years.

Unanimous Supreme Court Decision Creates Major Setback for TPS Recipients Seeking Permanent Residence

On June 7, 2021, the Supreme Court unanimous held in Sanchez v. Mayorkas that a grant of Temporary Protected Status (TPS) does not qualify as being “admitted and inspected” for purposes of adjustment of status. Prior to this decision, federal circuit courts were split on the issue. Accordingly, many TPS recipients living in parts of the country who previously held that TPS was an admission and inspection may no longer be able to adjust status. TPS beneficiaries who were previously prohibited from adjusting status for their unlawful entry will continue to be ineligible for adjustment of status unless they qualify through other exceptions in the law.

The Supreme Court’s decision, written by Justice Kagan, based its reasoning on a technical reading of a federal statute, which indicates that TPS beneficiaries are in nonimmigrant status but omits the mention of admission. The textual decision did not address the reasoning of the three federal circuit courts that interpreted this statute differently, the inconsistent treatment of the petitioner, or the impact the decision would have on TPS recipients and their families.

In an important footnote in its decision, the Supreme Court reserved the issue of whether TPS beneficiaries who were “paroled” into the United States after receiving TPS benefits are eligible for adjustment of status. Federal law allows those who were paroled to seek adjustment of status. Many TPS beneficiaries, including those who initially entered without inspection, seek parole when needing to temporarily travel abroad for humanitarian reasons. The Trump Administration prohibited TPS beneficiaries who were paroled after August 20, 2020, from seeking adjustment of status. The rescission of a long-standing policy was challenged and is currently unresolved. The Biden Administration has yet to undo this policy, which appears to be contrary to what is required under federal law.

The decision was among the most significant immigration cases in the Supreme Court’s term, as there are approximately 400,000 TPS recipients from 12 countries living throughout the United States. TPS provides the right to live and work in the United States temporarily but does not offer a direct pathway to lawful permanent residence. TPS recipients must past a criminal background check and cannot be convicted of felony or more than one misdemeanor. TPS beneficiaries can be eligible to renew their benefits every 18 months, provided that DHS permits re-registration for the designated country. Hundreds of thousands of beneficiaries have lived in the United States for decades, own businesses, own homes, work in all sectors of the economy, and have U.S. citizen children. The Trump Administration attempted to end benefits for most TPS beneficiaries but was temporarily blocked by federal courts. Given the precarious nature of the benefits that could be eliminated with changing political tides, most TPS beneficiaries wish to permanently remain in the United States.

It is important to note that the Supreme Court decision will not affect TPS beneficiaries who were initially admitted and inspected or can qualify for an adjustment through “245(i),” or are seeking adjustment through a humanitarian benefit rather than a family or employment-based petition. However, the vast majority of TPS recipients do not qualify for these specific exceptions in law and will be negatively affected by the decision. The House of Representatives did pass legislation allowing for a pathway to permanent residence for TPS recipients, but it will likely fail in the Senate.

USCIS Ends Biometrics Requirement for Extension/Change of Status for H-4, L-2, E Visas

USCIS has temporarily suspended the biometrics submission requirement for certain applicants filing Form I-539, requesting an extension of stay or a change of status to H-4, L-2, or E nonimmigrant status. USCIS will allow adjudications for those specific categories to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph. This suspension will apply through May 17, 2023, subject to affirmative extension or revocation of the suspension period by the USCIS director.

This suspension will apply only to the above categories of Form I-539 applications that are either pending as of May 17, 2021, and have not yet received a biometric services appointment notice, or to new applications postmarked or submitted electronically on or after May 17, 2021. However, USCIS retains discretion on a case-by-case basis to require biometrics for applicants who meet the criteria above. Form I-539 applicants who have already received a biometric services appointment notice should still attend their scheduled appointment.

Form I-539 applicants meeting the criteria above are not required to submit the $85 biometric services fee for the form during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee. While USCIS allowed a short grace period during which USCIS would not reject Form I-539 filed with the biometric fee, it will now. Thus, if the biometrics fee is included with the I-539 filing fee as a single payment, the filing will be rejected and the applicant will need to refile.

Policy Updates: Eligibility for Naturalization

USCIS updated policy guidance in its Policy Manual regarding applicants’ registration to vote through a state’s department of motor vehicles or other state benefit application process and the effects on an applicant’s good moral character (GMC).

This is a key development because applicants for naturalization must demonstrate GMC during the required period of time immediately before filing and up to the time they take the Oath of Allegiance.

The update is effective immediately, and provides clarifications regarding applicants who have or may register to vote through a state’s benefit application. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance. Below are the key takeaway points from the policy update:

• Clarifies that USCIS will not penalize an applicant who unknowingly or unwilfully registers to vote.
• Clarifies that USCIS does not consider an applicant to have unlawfully registered to vote if the applicant did not complete or sign the voter registration section (including electronic signature, if applicable) in the motor vehicle or other state benefit application.
• Clarifies that USCIS does not consider an applicant to have unlawfully claimed to be a U.S. citizen if the applicant did not affirmatively indicate that he or she is a U.S. citizen. However, if the applicant registered to vote, the applicant has the burden to prove that the registration form did not contain a question about whether the applicant is a U.S. citizen or that the applicant did not indicate, in response to the question, that he or she is a U.S. citizen.
• Clarifies that an applicant may be considered to have falsely claimed to be a U.S. citizen for the purpose of registering to vote, and therefore may lack GMC because he or she committed an unlawful act in violation law, if the applicant knowingly answered “yes” to a question asking whether he or she was a U.S. citizen in order to register to vote. This may apply even if the applicant’s registration to vote was done simultaneously with the process of a driver’s license or ID card application, or an application for other state benefits.

Attorney General Garland Vacates Trump Era Decisions Restricting Asylum

On June 16, 2021, the Attorney General mercifully vacated precedential decisions in Matter of A-B- and Matter of L-E-A- that were intended to restrict asylum. The prior decisions obstructed those seeking asylum benefits as a result of domestic abuse and gang violence due to familial ties. The old precedent also intended to severely limit eligibility for asylum for those who were fleeing persecution perpetrated by private actors rather than a government. Attorney General Garland reasoned that these matters should be decided by federal rulemaking and, in the meantime, the law should revert to prior precedent. Proposed rules on the subject are due by October 30, 2021; the final regulations will be pushed well into next year.

The forthcoming DOJ regulations on asylum will have an extraordinary impact on the future of asylum. Many legal experts say that the regulations should explicitly specify that gender alone may be the basis of a particular social group. Furthermore, recognizing a group alone does not ensure asylum protections and the regulations must help rectify the BIA’s method for determining whether the persecution is “on account of” the group membership.

The power to vacate these decisions comes from the Attorney General’s ability to oversee immigration courts and the immigration judges within each court. The Attorney General has authority to certify decisions made by the Board of Immigration Appeals (BIA), which is housed by the Department of Justice. The Attorney General receives this referral power from federal regulation, in accordance with the broad immigration powers Congress delegated to the executed branch. The Trump Administration used the certification power an unprecedent 17 times during his single term, more than any administration in U.S. history. By comparison, the Obama Administration only used the certification power four times over the course of two terms. Accordingly, even after vacating this egregious precedent, the vast majority of the Trump Administration’s AG decisions remain in effect.

Many of the Trump Administration’s other AG decisions limit eligibility for asylum, protection under the Convention Against Torture, cancellation of removal, judicial independence for immigration judges, administrative closure, continuances, and the impact of post criminal conviction relief. Beyond those AG decisions, the Trump Administration also changed the composition of the appellate courts, installing judges who issued dozens of precedential decisions that adversely affect immigrants in removal proceedings. Within the immigration courts, there are many immigration judges appointed by Trump that were either prosecutors for ICE, had no prior experience in immigration law, or belonged to advocacy groups opposed to legal immigration. It is unclear how committed the Biden Administration is to unravelling the legal precedent established in the previous administration. Nevertheless, the decision to vacate these horrendous decisions is an extremely positive first step in rectifying the immigration courts.

Department of State Priority Processing of Immigrant Visas

Because most U.S. embassies and consulates are still operating at a reduced capacity due to the continued impact of the COVID-19 pandemic, DOS has announced a priority system for the processing and scheduling of interviews for immigrant visa (IV) applications. A significant backlog of applications remains for IV (as well as for nonimmigrant visa) applicants waiting for a visa interview. As DOS’s primary mission is to serve U.S. citizens abroad, foreign national visa applicants are not a top priority for the department. As of May 2021, there were more than 500,000 immigrant visa applications waiting processing. A reduced number of applicants are processed each day (and has been for well over a year), as the consulates worldwide adhere to social distancing and other preventative measures.

The following is DOS’s priority for IVs, in this order

• Tier One: Certain special immigrant visas, immediate-relative intercountry adoption visas, and age-out cases, which are cases where children will soon no longer qualify due to their age.
• Tier Two: Immediate relative visas, fiancé visas, and returning resident visas.
• Tier Three: Family preference immigrant visas and special immigrant visas for certain U.S. government employees located abroad.
• Tier Four: All other remaining immigrant visas, including diversity and employment-based visas.

DOS is also prioritizing the processing of IV cases previously refused under the now-rescinded Presidential Proclamations 9645 and 9983, which suspended entry into the United States of certain nationals from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen. IV applicants who were refused due to P.P. 9645 or 9983 and whose eligibility for a waiver was still being evaluated as of January 20, 2021, will continue to have their applications processed and prioritized.

It is hoped that this priority system of processing visa applications and scheduling interviews along with the easing of the global impact of COVID-19 will result in a significant clearing of backlogged applications.

USCIS Will Grant Work Permits to Victims of Crimes with Pending U Visa Applications

On June 14, 2021, USCIS announced a new policy expanding access to work authorization and protection from deportation for victims of crime who have filed good-faith applications with USCIS. Before this policy change, work authorization would not be granted until the U visa application was decided by USCIS. As USCIS is taking close to five years to adjudicate U visa applications, this policy change is greatly needed. An estimated 269,000 U visa applications are pending before USCIS as of December 2020. It is unclear how many of the pending applicants will be issued work authorization.

The United States issues 10,000 U visas annually to immigrants who are victims of certain crimes and have helped law enforcement investigations or prosecutions. To qualify, the applicants must receive certification from a law enforcement agency indicating that they were helpful in the detection, investigation, or prosecution of the crime. Applicants must also show that they suffered physical or psychological harm as a result of being a victim of the criminal activity. If granted a U visa, applicants obtain a lawful status in the United States for four years and are permitted to apply for permanent residence after three years in U visa status. If the victim is over the age of 21, the victim’s spouse and children under 21 can derive benefits from the application. For victims under the age of 21, their parents and unmarried siblings under the age of 18 can qualify as derivative applicants.

DHS Secretary Alejandro Mayorkas said that this policy change will both benefit victims and promote public safety. He added, “These are victims who have come forward to help law enforcement keep us all safe, but who are in need of a measure of protection for themselves, as well.

Prosecutorial Discretion Memorandum Issued by DHS

On May 27, 2021, the DHS issued a highly anticipated memorandum for ICE trial attorneys providing interim guidance on enforcement and removal priorities and exercising prosecutorial discretion. The memorandum should allow ICE attorneys more independence, will help cases be resolved more amicably, will enhance efficiency in immigration court, and will hopefully reduce the backlog of cases there, which ballooned to well over 1.3 million cases during the Trump Administration. Already, the ICE trial attorneys working at the Baltimore and Arlington (VA) immigration courts have created email addresses to review requests for prosecutorial discretion.

The memorandum clarifies that military service members and their immediate relatives should be priorities for prosecutorial discretion. It also indicates that individuals likely to receive temporary or permanent relief, those with compelling humanitarian factors, significant law enforcement or government interests, and long-term lawful permanent residents should also be considered when exercising prosecutorial discretion. Humanitarian factors such as serious health condition, old age, pregnancy, being a minor, being a primary caregiver to someone suffering from a significant illness, victims of significant crimes, significant continuous presence in the United States since arrival as a child, or being a party to significant collateral civil litigation are considered to be compelling reasons to exercise prosecutorial discretion. Respondents who were witnesses and confidential enforcements for criminal and civil rights cases are examples of instances where there were significant government interests in exercising prosecutorial discretion.

Prosecutorial discretion could be exercised by government ICE trial attorneys by deciding to not file a charging document to start removal proceedings, agreeing to join a motion on a case, agreeing to postponements, to a dismissal of proceedings, and/or deciding not to pursue appeal when relief is granted by an immigration judge.

The memorandum established enforcement and removal priorities for noncitizens posing threats to national security, noncitizens who were apprehended at the border on or after November 1, 2020, and those who present threats to public safety. Persons engaged in espionage or terrorism activities were defined as threats to national security. Noncitizens convicted of aggravated felonies, convicted of offenses in which an element was participation in a criminal street gang, and individuals over the age of 16 years old who were involved in gangs were defined as threats to public safety.

While most of the enforcement priorities seem reasonable, we find it upsetting that asylum seekers who recently arrived in the United States could be considered priorities for removal. It would have been appropriate to carve out an exception within the memorandum for individuals apprehended at the border who requested credible or reasonable fear. Overall, the memorandum appears to be a significant step forward in adding fairness, compassion, and justice to the immigration system.

Update on Children Separated at the Border Due to Trump Zero-Tolerance Policy

In February, President Biden signed an Executive Order establishing an Interagency Task Force on the Reunification of Families, in response to the prior administration’s use of immigration laws to intentionally separate children from their parents and legal guardians, including through the use of a zero-tolerance policy. In its first 120 days, the Task Force (1) identified nearly all of the children who were separated from their parents as a result of that policy and related initiatives; (2) established a reunification process for these families; and (3) began reunifying parents and legal guardians with their separated children in the United States.

Of the 3,913 children identified, 1,786 have already been reunified with a parent – most prior to the creation of the Task Force – leaving 2,127 children who have not yet been reunified to the Task Force’s knowledge. While many of the initial hurdles encountered during the first 120 days have been overcome, key decisions and challenges remain, most notably the absence of family separation records maintained by the prior administration.

Prior to establishment of the Task Force, 1,779 children were reunified with their parents in the United States. Over the last 30 days, the Task Force facilitated, through close coordination with the NGOs and attorneys representing the families, the reunification of seven children with their parents. The Task Force started reunifying families in coordination with the American Civil Liberties Union (ACLU), which is representing the families, by accepting humanitarian parole requests for an initial group of individuals. One child was reunited with a parent in March 2021 and six children were reunited in May 2021. As of May 28, 2021, 48 family members filed requests for humanitarian parole with DHS. Thirty-seven individual cases, comprising 29 families, have been adjudicated and will be reunited in the coming weeks. The remaining cases are still being adjudicated. NGOs who have been working with families and the ACLU continue to play a critical role in contacting parents and facilitating the reunification with their children.

U.S. Citizens May Return to U.S. on Expired U.S. Passport

U.S. citizens will be able to return to the United States on an expired U.S. passport through December 31, 2021, if they:

• are currently abroad seeking to return to the United States;
• are flying directly to the United States, a U.S. territory, or have only short-term transit (connecting flight) through a foreign country on their return to the United States or to a U.S. territory;
• have an expired passport that was originally valid for 10 years (or 5 years if the individual was 15 years of age or under when the passport was issued); and
• have an expired passport that is undamaged and in their possession.

Please note that an expired U.S. passport may not be used to travel from the United States to an international destination for any duration longer than an airport connection. DOS recommends U.S. citizens delay any travel abroad and reminds that return to the United States requires proof of a negative COVID-19 test result, taken within 72 hours of their flight’s departure.

News in Brief

Redesignation of Haiti for TPS: DHS Secretary Mayorkas announced a new 18-month designation of Haiti for TPS, enabling Haitian nationals and individuals without nationality who last resided in Haiti currently residing in the U.S. as of 5/21/21 to file initial applications for TPS as long as they meet eligibility requirements.

 Land Travel between the U.S. and Canada and Mexico Remains Restricted: CBP has continued the temporary travel restrictions limiting travel of individuals from Canada and from Mexico into the United States at land ports of entry along the United States–Canada border through 7/21/21 due to COVID-19. “Essential” travel is permitted, and travel by air is not limited.

EB-5 Investment Reverts to $1 Million or $500,000: A federal district court granted summary judgment in favor of the plaintiff, holding that DHS violated the Administrative Procedure Act when it promulgated a July 2019 final rule amending its regulations for the EB-5 program, including providing priority date retention to certain EB-5 investors and increasing the required minimum investment amounts. The court concluded that Former Acting DHS Secretary was not lawfully serving as DHS Secretary when he promulgated the final rule, and thus the final rule is void. Further, the court explained that neither the current DHS Secretary’s after-the-fact ratification nor the de facto officer doctrine saved the rule. Pursuant to this decision, the EB-5 program will return to a minimum investment amount of $500,000 for certain pooled investors in regional centers and $1 million for individual investors. Meanwhile, however, the EB-5 Immigrant Investor Regional Center Program will sunset at midnight on 6/30/21 unless otherwise extended by Congress.

DOS Updates Position on U.S. Citizenship Transmission and Assisted Reproductive Technology: DOS announced that children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements.